Decision Date: 11/20/95 Archive Date:
11/22/95
DOCKET NO. 93-27 615 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to service for a chronic right ankle
disability.
2. Entitlement to service connection for a bilateral knee
disorder.
3. Entitlement to service connection for a disability
manifested by chest pain and difficulty breathing.
4. Entitlement to service connection for pneumonitis.
5. Entitlement to an increased evaluation for a left ankle
disability, currently evaluated as 10 percent disabling.
6. Entitlement to an increased (compensable) evaluation for
a gastrointestinal disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from September 1985 to July
1991.
This case comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1991 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in San Francisco, California, which granted service
connection for a disability of the left ankle, classified
for rating purposes as status post injury to the left ankle,
with tendinitis, and assigned a 10 percent evaluation,
effective July 2, 1991. Service connection was also granted
for a gastrointestinal disorder, classified for rating
purposes as mild, erythematous changes of the duodenal bulb,
and a noncompensable rating was assigned, effective the same
day. Service connection for bilateral knee chondromalacia,
a right ankle disability, a chronic organic disability
manifested by chest pain and difficulty breathing, and acute
pneumonitis, was denied.
The record shows that since he began his appeal, the veteran
moved to the State of Washington and his records have been
transferred to the Seattle RO.
For reasons which will be set forth below, the issues of
entitlement to service connection for a chronic right ankle
disability, service connection for a bilateral knee
disorder, an increased evaluation for a left ankle
disability, and a compensable evaluation for a
gastrointestinal disorder, are being deferred pending
further development.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative essentially maintain that
he was seen for chest pain, difficulty breathing, and
pneumonitis while in service and has continued to have
problems with chest pain, difficulty breathing, and
pneumonitis since service discharge. Accordingly, it is
maintained service connection is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that his claims
for service connection for a disability manifested by chest
pain and difficulty breathing and for service connection for
pneumonitis are well-grounded.
FINDINGS OF FACT
1. No competent evidence has been presented sufficient to
establish the presence of a disability manifested by chest
pain and difficulty breathing that is related to service.
2. The veteran has not presented competent evidence
sufficient to establish that his claim for service
connection for pneumonitis is plausible or capable of
substantiation.
CONCLUSIONS OF LAW
1. The claim for service connection for a disability
manifested by chest pain and difficulty breathing is not
well-grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. The claim for service connection for pneumonitis is not
well-grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The threshold question that must be resolved with regard to
a claim is whether the veteran has presented evidence of a
well-grounded claim. See 38 U.S.C.A. § 5107(a) (West 1991);
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-
grounded claim is a plausible claim that is meritorious on
its own or capable of substantiation. See Murphy, 1
Vet.App. at 81. An allegation of a disorder that is service
connected is not sufficient; the veteran must submit
evidence in support of a claim that would "justify a belief
by a fair and impartial individual that the claim is
plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski,
2 Vet.App. 609, 611 (1992). The quality and quantity of the
evidence required to meet this statutory burden of necessity
will depend upon the issue presented by the claim.
Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993).
In order for a claim to be well-grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the inservice injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498 (1995).
Where the determinative issue involves a question of medical
diagnosis or medical causation, competent medical evidence
to the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993). Lay assertions of medical
causation do not constitute evidence to render a claim well-
grounded under 38 U.S.C.A. § 5107(a); if no cognizable
evidence is submitted to support a claim, the claim cannot
be well-grounded. Id.
In this case, there is no competent evidence of record to
support the contention that the veteran has a current
disability manifested by chest pain and difficulty breathing
or that he has chronic, recurrent pneumonitis attributable
to his active service. Examination by VA in October 1991
resulted in diagnoses which included a history of chest pain
of undetermined causation, but no diagnosis indicative of a
current disease process was made.
Because the veteran's claims are not well-grounded, VA is
under no duty to assist him in further development of the
claims. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1
Vet.App. 78 (1990).
In finding that the claims of entitlement to service
connection for a disability manifested by chest pain and
difficulty breathing and service connection for pneumonitis
are not well-grounded, the Board concludes that the veteran
has not been prejudiced by the dismissal of the claims since
he is not burdened with a prior final adjudication on the
merits. Thus, if he is able to submit a well-grounded claim
in the future, he will not be faced with the higher hurdle
of providing new and material evidence to reopen his claim
after a prior final adjudication. 38 U.S.C.A. §§ 5108,
7104, 7105 (West 1991); McGinnis v. Brown, 4 Vet.App. 239,
244 (1993). If the veteran were to submit clinical evidence
establishing the presence of pertinent disability that could
be related to service, his claim would be well grounded.
Robinette v. Brown, 8 Vet.App. 69, 77-78 (1995).
ORDER
The claim of service connection for a disability manifested
by chest pain and difficulty breathing is dismissed.
The claim of service connection for pneumonitis is
dismissed.
REMAND
A review of the service medical records reveals that the
veteran was seen for complaints with regard to all of the
disabilities at issue. With regard to the claim for service
connection for a chronic right ankle disability, when he was
accorded the original examination by VA in October 1991, a
diagnosis was made of mild to moderate stiffness and a
decrease in mobility in both ankles, the right greater than
the left, "presumed secondary to injury in the military
service." However, when he was accorded an authorized
examination for VA in April 1993, a diagnosis was made of
multiple joint pain involving both knees and both ankles,
despite X-ray studies of both ankles being entirely normal.
The evidence is not clear as to the exact nature, extent,
and etiology of any chronic right ankle disability.
As to the claim with regard to service connection for a
bilateral knee disorder, examination by VA in October 1991,
several months following service discharge, reflected a
diagnosis of degenerative arthritic changes of both knees
(despite X-ray studies being normal) with pain "syndromes"
by activity, and some limitation of motion on flexion and
extension with weakness. In addition to the multiple joint
pain involving the knees diagnosed by the examiner in April
1993, another diagnosis was made of residuals of Osgood-
Schlatter's disease of the left knee. The examiner noted
that the veteran gave a history of having had knee pain in
high school and college, while continuing to play various
sports. It was noted that the examiner did not have access
to the veteran's records. The examiner commented that
despite fairly normal-appearing X-rays, there was support
for the veteran's complaints of arthralgia involving both
knees and both ankles. The examiner thought it would be
appropriate to have "an arthritis battery" on the veteran.
However, this was not accomplished.
As for the claim for a compensable rating for a
gastrointestinal disability, when the veteran was examined
by VA in October 1991, he indicated that he had taken
Tagamet, Zantac, Rolaids, and other antacids in the past
without any relief. Clinical examination reflected
tenderness in the epigastrium and in the right upper and
lower quadrants. A pertinent diagnosis was a history of
upper abdominal pain of undetermined etiology.
Records from John R. Quinn, M.D., contained a notation dated
November 30, 1992, that the veteran had a very "complex"
history of past gastrointestinal problems in previous work-
ups including esophagoscopy and gastroscopy. A pertinent
impression was made of gastrointestinal problems. Further
studies were indicated and laboratory testing was done in
December 1992. The tests revealed hemoglobin and hematocrit
levels were within normal limits. A high sedimentation rate
was noted. A notation was made that the examiner was not
sure if a lactose kit might help. The Board believes that a
more comprehensive gastrointestinal examination by VA is in
order to clarify the exact nature and extent of the
veteran's service-connected gastrointestinal disability.
The veteran's local representative has asked that the case
be remanded for further development and the Board agrees
with this request. In light of the foregoing and the
Board's duty to assist the veteran in the development of
facts pertinent to his claims, as mandated by 38 U.S.C.A. §
5107(a), the case is REMANDED to the RO for the following
actions:
1. The RO should contact the veteran and request that he
provide the names and addresses of all health care providers
who have treated him for the disabilities at issue since
service discharge, as well as the approximate dates of
treatment. Then, after the necessary authorization is
obtained from the veteran, the RO should attempt to obtain
copies of all treatment records identified by the veteran.
Of particular interest is any additional information from
John R. Quinn, M.D., regarding treatment of the veteran
since late 1992.
2. The RO should arrange for rheumatology and orthopedic
examinations of the veteran for the purpose of determining
the current nature and extent of his service-connected left
ankle disability and any right ankle and/or bilateral knee
disability, to the extent any is present. The examiners
should specifically state whether any current right ankle
and/or bilateral knee disability is related to the veteran's
service-connected left ankle disability. The examiners
should also address whether any Osgood-Schlatter's disease
in the veteran's left knee was aggravated during his period
of active service. The rationale for any opinion expressed
should be explained in detail. All indicated studies should
be performed, and the claims folder should be made available
to the examiners in conjunction with the examinations.
3. The RO should also arrange for an examination of the
veteran by a specialist in gastroenterology for the purpose
of determining the nature and extent of the veteran's
service-connected gastrointestinal disorder. All indicated
studies should be performed and the claims folder should be
made available to the examiner in conjunction with the
examination.
4. Thereafter, the RO should review the claims for service
connection for a chronic right ankle disability, service
connection for a bilateral knee disorder, an increased
evaluation for a left ankle disability, and a compensable
evaluation for a gastrointestinal disorder.
Thereafter, if the benefits sought on appeal are not granted
to the veteran's satisfaction, he and his representative
should be provided a supplemental statement of the case and
be accorded the applicable time period in which to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. By
this REMAND, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is notified by the RO.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans' Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date that appears on
the face of this decision constitutes the date of mailing
and the copy of this decision that you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals. Appellate rights do not attach to those
issues addressed in the remand portion of the Board's
decision, because a remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).
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